The Federalism Dimension in Yemen’s Draft Constitution

After having been leaked for several weeks, a draft proposal for Yemen’s new constitution has finally been officially published online. Among other things, it offers insights into the ongoing struggle about what state structure Yemen should have in the future, with important parallels to similar processes in Iraq and Libya. The draft constitution defines Yemen as a federal country, with key questions relating to the demarcation of federal units, as well as the division of power between the centre and the projected regions.

As far as administrative divisions are concerned, the draft (article 391) defines Yemen as a country of six regions, of which four will be in the north and two in the south (Aden and Hadramawt). Subunits of the regions are listed, meaning that boundary demarcation will be a relatively minor issue. Additionally, the cities of Sanaa (capital) and Aden (commercial special area) will have separate statuses. The partition of the north into four separate subunits is known to have prompted strong objections from the Shiite-leaning Houthi movement (which senses it will be left short-changed in a way that is not commensurate with its recent military successes) but is in line with previous UN-sponsored proposals.

In this way, the Yemeni draft goes further than the Iraqi constitution in presenting a fully-fledged federal map where the entire country is subdivided into federal regions from the outset. There are also some checks and balances regarding territorial representation at the central government, including provisions for 40% representation of the two southern regions in the first parliament (article 139) and a requirement that senate decisions must enjoy support of at least a third of southern senators (article 143). The president (who, unlike Iraq, will be the main executive) and his deputy are to be elected on a single list representing more than one region (article 180), though the powers of the deputy president are not defined beyond whatever the president decides (see article 194).

The most important issue concerns division of power between the different levels of government. The Yemeni draft is unsatisfactory in this respect, exactly like the Iraqi constitution that was adopted in 2005, and arguably a lot less clear than the recently published Libyan draft constitution. The problem is the way in which the concept of residualism is tackled. In most federations, division of power is defined by a list of powers that are reserved for either the centre or for the subunits exclusively – with everything else (the “residual”) by implication being reserved for the other. There may also be a specific list of shared powers. However, in the Yemen draft constitution there are at least six points related to this. Firstly, there is an enumeration of powers for the central government. Secondly, there is an enumeration of powers for the regions. Thirdly, there is a list of powers for subunits within the federal regions. Fourthly, there is a list of shared areas of government between the centre and the federal regions. Fifthly, there appears to be an attempt at establishing residualism in favour of the regions for anything not specifically mentioned at any level. Sixthly, provision is clearly being made for special autonomies for the two cities with special administrative statuses (Sanaa and Aden) but there is no specification of their exact powers.

As for those powers that are mentioned as exclusive powers of the federal government, beyond the rock-bottom minimum of the likes of weight and measures and external defence, there is national electricity provision as well as “national education”. Both are examples of things that are constitutionally not the exclusive powers of the central government in Iraq but are nonetheless directed from Baghdad in practice. “Shared competencies” between the federal government and the regions include policy areas that are less contested like youth, women’s affairs and sports. On the other hand, a noteworthy item among the powers reserved exclusively for the regions (article 337) is the right to sign deals for trade and investment. But other “exclusive” areas are less exclusive in reality. For example, confusingly, for both education and environment, a distinction is made between national and local policy, meaning very critical demarcation issues are left for later.

Beyond this, article 338 outlines competencies of subunits in the federal regions (wilayats). This is confusing, especially because there is sometimes no clear specification of whether policy-making or simply the provision of services is intended, for example when public services including water, gas and electricity are mentioned. There is also a contradiction in the way in which powers of subunits of federal regions are already defined by the drafters of the constitution. This leaves very little room for meaningful content in the stipulated new constitutions of the regions.

On top of this, article 341 seems to establish the principle of residualism in favour of the regions for whatever competencies are not enumerated specifically for either the central government or the local subunits. One might think that oil and gas could be one such residual area but that is not the case. Instead, separate sections (articles 357 and 387-90) address energy issues, but only by way of generalities, leaving the designation of revenue distribution and the management of the oil sector for future legislation. With vague concepts like “a just (adila) distribution” the Yemeni draft constitution offers even less in terms of guidelines than the hapless Iraqi one from 2005, and much less than the relatively clear Libyan constitutional draft that was released recently.

In sum, the long-winded Yemeni draft constitution provides less clarity than the often contradictive Iraqi constitution of 2005, and much less than the Libyan constitutional draft. With the military situation unfolding rapidly, there is not much in this document that key players can look to in order to save the situation and bring it back to the political track. Quite the contrary, it has been suggested that fury simply over the proposed administrative divisions and the six-way federal scheme was a contributing factor behind the recent moves of the Houthis against the Yemeni president.

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This entry was posted on Tuesday, 20 January 2015 18:40 at 18:40 and is filed under Federalism in the Middle East.
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